Tag: Digital Estate Planning

Though most Americans have a substantial amount of “digital property” or “digital assets” (such as email accounts, social media accounts, and blogs), federal legislation regarding digital property does not yet exist.

Most states rely on the particular terms of service or privacy policy of the service that manages the asset (such as Gmail, Facebook, or Tumblr) to determine what should be done with the particular asset when the owner dies.

That said, 28 states have stepped in to create laws that will protect people’s digital assets and give the person’s family the right to access and manage those accounts after the owner has died. Plus, The Uniform Law Commission created the Fiduciary Access to Digital Assets Act, which is aimed to allow executors, trustees, or the person appointed by court (“conservator” or “fiduciary”) complete access to deceased’s digital assets. While it’s not yet the law of the land, it shows there’s some forward momentum and progress regarding this issue.

If your state is not listed below, that means that your state has not yet passed laws to address these issues. As always, it’s a good idea to consult a licensed estate attorney in your state to get a better sense of your state’s laws, and how you can create a digital estate plan in your state.

Arkansas

No legislation.

California

Law:AB-691 Revised Uniform Fiduciary Access to Digital Assets ActDescription: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications.Status: This was approved by the Governor and filed with the Secretary of State on September 24, 2016.

Connecticut

Law:SB 262 Public Act No. 05-136Description: Executors may access email accounts. The state requires a death certificate and documentation of the executor’s appointment before the estate’s representative can see the deceased person’s emails or social networking accounts.Status: Effective October 1, 2005

Law:HB 345 Fiduciary Access to Digital Assets and Digital Accounts Description: From the original synopsis: “Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts.”Status: Effective August 12, 2014

Law: SB 494, Chapter 740 Florida Fiduciary Access to Digital Assets ActDescription: This law grants fiduciaries legal authority over the deceased’s digital assets and accounts. Here’s the official summary: “Authorizing a user to use an online tool to allow a custodian to disclose to a designated recipient or to prohibit a custodian from disclosing digital assets under certain circumstances; providing procedures for the disclosure of digital assets; authorizing the court to grant a guardian the right to access a ward’s digital assets under certain circumstances.”Status: Signed into law on March 10, 2016; Effective July 1, 2016

Law:SB 131Description: Establishes provisions governing the termination of a decedent’s accounts on electronic mail, social networking, messaging and other web-based services.Status: Effective October 1, 2013

Law:AB A9910ADescription: Provides for the administration of digital assets; authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications; provides that this article does not impair the rights of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user; provides for a procedure for disclosing digital assets.Status: Effective September 29, 2016,

Proposed law:HB 1455Description: A bill for an act to create and enact a new chapter to title 34 of the North Dakota Century Code, relating to internet accounts and workplace privacy of social media accounts.

Name of law:HB 2800Description: An act relating to probate procedure; authorizing an executor or administrator to have control of certain social networking, micro-blogging or e-mail accounts of the deceased; providing for codification; and providing an effective date. Allows provisions in a will or a formal order to control access. [Read the full Bill]Status: Effective November 1, 2010Note: On January 19, 2016 SB 1107 Uniform Fiduciary Access to Digital Assets [Full Text] was introduced to the Oklahoma Legislature and is in progress. Whether this is meant to replace or ammend the previously enacted digital asset legislation remains to be seen.

Proposed law:SB 1554 Revised Uniform Fiduciary Access to Digital Assets ActDescription: “It allows a fiduciary, such as a personal representative, trustee or conservator, to access certain digital content within certain limits. It permits entities that hold electronic data to allow users to specify their wishes in the event they become inactive or when the entity receives a request for information. (If a user specifies, that trumps all other instructions, including a will.) The measure also permits fiduciaries to obtain a catalogue of digital communications, and sets forth a number of protocols for them, to cover a variety of situations, such as: when users consent to disclosure, or refuse, or fail to specify; or when disclosure has been ordered by a court.” [Source: Oregon’s Summary of Legislation, 2016]Status: Effective January 1, 2017

Proposed law:SB 914Description: Fiduciary access to digital assets. Enables a fiduciary to gain access to the digital accounts and digital assets of the person or estate to whom he owes a fiduciary duty upon making a written request to the custodian of the digital accounts and digitals assets and submitting proof of the fiduciary relationship.Date introduced: January 7, 2013Status: UnknownFull text:Click here for full text of the proposed Virginia law

Though we make every effort to keep this list as up-to-date as possible, there may be information that’s not current. If you’re aware of updates or changes to digital asset legislation in any state, please let us know here.

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